{ "id": 3459943, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH RUSKEY, Defendant-Appellant", "name_abbreviation": "People v. Ruskey", "decision_date": "1986-07-18", "docket_number": "No. 84-1678", "first_page": "482", "last_page": "497", "citations": [ { "type": "official", "cite": "149 Ill. App. 3d 482" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "309 N.E.2d 265", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill. App. 3d 61", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2609270 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0061-01" ] }, { "cite": "400 N.E.2d 656", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "80 Ill. App. 3d 1046", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3233695 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/1046-01" ] }, { "cite": "426 N.E.2d 623", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "100 Ill. App. 3d 83", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5502333 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0083-01" ] }, { "cite": "442 N.E. 2d 637", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "110 Ill. App. 3d 519", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2995569 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0519-01" ] }, { "cite": "425 N.E.2d 323", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. 2d 402", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5473821 ], "pin_cites": [ { "page": "409-10" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0402-01" ] }, { "cite": "450 N.E.2d 451", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 384", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3557697 ], "year": 1980, "pin_cites": [ { "page": "388-89" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0384-01" ] }, { "cite": "412 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "82 Ill. 2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476013 ], "weight": 2, "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0268-01" ] }, { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "pin_cites": [ { "page": "154, 156" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "431 N.E.2d 344", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "88 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082585 ], "year": 1977, "pin_cites": [ { "page": "492-93" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0482-01" ] }, { "cite": "462 N.E.2d 473", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160723 ], "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0366-01" ] }, { "cite": "418 N.E.2d 1070", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "94 Ill. App. 3d 665", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3124825 ], "year": 1984, "pin_cites": [ { "page": "667-68" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0665-01" ] } ], "analysis": { "cardinality": 1151, "char_count": 35824, "ocr_confidence": 0.764, "pagerank": { "raw": 8.307758773076956e-08, "percentile": 0.4798171630855699 }, "sha256": "7bc5b35b9a775b32d6bda59734e4abfaaf600b0605bc76ed3c1e1369bce677f3", "simhash": "1:a7bbd2fe36c7dcb5", "word_count": 6196 }, "last_updated": "2023-07-14T21:36:15.078878+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH RUSKEY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE PINCHAM\ndelivered the opinion of the court:\nAfter a trial by the court on a one-count indictment which charged armed robbery, Joseph Ruskey and Robert Piehl were found guilty of robbery and were sentenced to three and four years\u2019 imprisonment, respectively. Piehl does not appeal. Ruskey contends on this appeal that the trial court did not comply with the sentencing statute and abused its discretion when it denied his application for probation. The sequence of events in the trial court follows.\nThe indictment alleged that Robert Piehl and Joseph Ruskey on November 22, 1981, in Cook County, committed the offense of armed robbery, in that they by the use of force and by threatening the imminent use of force while armed with a dangerous weapon took United States currency from the person of Deborah Cregier, in violation of section 18 \u2014 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 18\u20142).\nIt appears from the record that pursuant to Illinois Supreme Court Rule 402(d), Plea Discussions and Agreements (103 Ill. 2d R. 402(d)), the attorneys and the trial court held a conference discussion on the possibility of the State proceeding against the defendants on a reduced charge of robbery. (Ill. Rev. Stat. 1979, ch. 38, par. 18\u20141.) The conference produced no accord. When the indictment came on for trial on April 24, 1984, the trial court informed the defendants:\n\u201cYou\u2019re charged with armed robbery, for which you could receive a minimum of six and a maximum of thirty years in the penitentiary, or on the other hand, you could be found guilty of a lesser included offense. Do you understand?\u201d\nBoth defendants responded in the affirmative. The trial court then advised the defendants of their right to trial by jury, which each defendant stated he understood and waived. Each defendant signed a written jury waiver.\nThe trial was postponed to the following day because of the court\u2019s engagement in another trial, which prompted the assistant State\u2019s Attorney to advise the defendant Piehl that he could be tried in absentia should he fail to appear. Thereupon, the following colloquy occurred:\n\u201cTHE COURT: I think he has been advised of that in the part of the right to proceed without him. And I should further state for the record that this discussion today and the execution of the jury waivers were after we had a conference, but no definite commitments were made by the court as to what would happen in a bench trial. You both understand that?\nDefendant Piehl A. Yes.\nDefendant Ruskey A. Yes.\u201d\nThe trial began April 25, 1985, and produced the following evidence.\nTHE STATE\u2019S EVIDENCE\nDEBORAH CREGIER testified, direct-examination:\nShe was 27 years old, a school teacher and a part-time cashier at the 7-Eleven store at 3800 North Central in Chicago. She worked the 4 p.m. to midnight shift the night of November 22, 1981, along with Dan, a co-worker. At approximately 9 p.m. she was at the cash register behind the counter, near the door. There were four customers in the store. Cregier identified the defendant Ruskey in court as one of the men who was present in the store at that time. Cregier had seen Ruskey prior to the night of the robbery, but did not know him.\nRobert Piehl entered the store and went to the candy aisle and then to the wine department. Cregier thought she would have trouble with Piehl because she would have to ask him for identification for his purchase of wine. Piehl left the wine department and moved to the cash-register area, but did not get in line. At that time, defendant Ruskey moved from the candy aisle to the cash register and Piehl nodded to him to move ahead in the line. Ruskey moved ahead of Piehl in the line and paid for the items he was purchasing. Ruskey remained at the cash register. Piehl moved to the cash register and told Cregier to give him (Piehl) all the money in the register. Piehl had a black gun in his right hand under his coat. The barrel was visible. Cregier began taking money out of the register. Ruskey gave the money in his hand to Piehl. Cregier then gave the money, about $87, from the register to Piehl. Piehl asked Cregier for the money underneath the register drawer. Cregier lifted the drawer and showed Piehl that there was no money there. Piehl then left the store, turned left and proceeded north along Central Avenue toward a gangway next to the 7-Eleven store.\nCregier went to tell Dan, her co-worker, that the store had been robbed. Ruskey told Cregier that he was going home and that she knew where he lived if she needed him. Cregier in fact did not know where Ruskey lived. Ruskey then left the store.\nDan called the police and Cregier gave the police a description of Piehl over the phone. She described Piehl as a white male, in his early 20\u2019s, with brown hair and a mustache, about 5 feet 7 inches, wearing a blue jacket and blue ski cap.\nThe police arrived shortly thereafter and Cregier recounted the robbery events to them. About 10 minutes later, Piehl was brought into the store by the police and Cregier identified him as the robber. Piehl was not wearing the coat and cap that he wore during the robbery. Ruskey returned to the store approximately 12 or 13 minutes after the robbery.\nDEBORAH CREGIER testified, cross-examination:\nRuskey had money in his hand and was about to pay her when Piehl took Ruskey\u2019s money. Ruskey did not take any money from her. Piehl never pointed the gun at her but kept the gun in his coat.\nWhen the police brought Piehl into the store, Cregier was afraid to identify him and initially said that she was not sure if Piehl was the man. Shortly thereafter, however, she identified Piehl as the robber before the police departed with him. Cregier testified that she had no doubt that Piehl, whom she identified to the police and in court, was the man who held the gun and robbed her. The police brought the gun into the store on the night of the robbery and she identified it. Piehl was not present at that time.\nLAWRENCE RYAN, a Chicago police officer, testified, direct examination:\nHe and his partner, Robert Whiteman, were patrolling in a squad car at about 9:15 p.m. on the night of the robbery. He heard a radio broadcast that an armed robbery had just occurred at the 7-Eleven store at 3800 North Central. A description was given by the dispatcher \u2014 a male white, brown hair, mustache, wearing a navy blue ski jacket.\nRyan and Whiteman proceeded to the address, drove through the parking lot and began a search of the area for the offender. While driving through an alley, Ryan spotted a figure crouched in a gangway. Ryan observed that he had dark hair and was wearing a blue ski jacket. Ryan stopped the car. The person ran north through the gangway away from the officers. Ryan and his partner exited the car and went through the gangway. They saw the man ringing the backdoor bell and pounding on the backdoor at 5621 Grace, which the officers later learned was Ruskey\u2019s residence.\nThe officers took the man (defendant Piehl) into custody. The people in the house said they did not know the man. The arrest occurred approximately two minutes after the officers began combing the area. Ryan found a navy blue ski cap, a jacket and a fully loaded .45-caliber automatic revolver at the scene of Piehl\u2019s arrest.\nWithin three or four minutes after he arrested Piehl, Ryan took Piehl to the 7-Eleven store and Cregier identified Piehl as the robber.\nOFFICER JEROME BOGUCKI testified, direct examination:\nHe and his partner, Detective Kaupert, interviewed defendant Ruskey at approximately 10:30 p.m. on the night of the robbery. Ruskey told Bogucki and Kaupert that he was waiting in line in the 7-Eleven store to make a purchase and a man came in with a gun and took $3 from him. Ruskey was asked to identify Piehl. Ruskey told the officers that Piehl was not the robber. Officer Bogucki then discovered that Ruskey lived at the address at which Piehl was arrested.\nPiehl was then questioned. He told the officers that he ran because he was carrying a gun he had just purchased when he heard and saw police cars. The officers then asked Ruskey why Piehl was knocking on his door. Ruskey responded that he was a friend of Piehl\u2019s mother, but he-did not know Piehl\u2019s first name. Ruskey denied participation in the robbery.\nAt this point, Ruskey was given Miranda warnings and upon further questioning Ruskey admitted that he and Piehl had been driving around in his car and that he knew that Piehl had a gun. Ruskey admitted that he and Piehl went into the 7-Eleven together but that he was surprised when Piehl showed the gun and robbed the store. Upon Officer Bogucki\u2019s further questioning of Piehl, Piehl admitted that he and Ruskey rode in Ruskey\u2019s car looking for a place to rob and that they looked at several gas stations before deciding to rob the 7-Eleven store. Piehl recounted that they went in, that he took the money and that they were to later meet back at Ruskey\u2019s residence.\nBogucki recovered the receipt for the purchase of the gun from Piehl. Ruskey signed a consent-to-search form. The officers recovered a brown holster from the front seat of Ruskey\u2019s car where Piehl told them he left it.\nJOHN WILSON, an assistant State\u2019s Attorney, testified:\nHe spoke with Piehl and Ruskey the morning following the robbery. Piehl told him that Ruskey visited his house and that he showed Ruskey the gun he had just bought. Ruskey suggested the possibility of robbing the 7-Eleven store and stated that the people there were \u201ckind of dumb.\u201d Piehl stated that they drove to the store and he (Piehl) went in. Thereafter Ruskey entered the store. Piehl said that he robbed the store, went to Ruskey\u2019s house, which was two or three doors from the store, split the money and left. As Piehl was leaving Ruskey\u2019s house he saw squad cars and attempted to reenter the house. Ruskey would not let him in.\nRuskey confessed to Wilson that he and Piehl had originally planned to rob a gas station but did not go through with it. Ruskey said that when they went to the 7-Eleven store, he thought about backing out, but that Piehl had the gun and robbed the store.\nThe State rested. The defendant, Robert Piehl, presented no evidence and rested.\nOn behalf of the defendant, Joseph Ruskey, it was stipulated that in July 1983 Ruskey had cancer surgery and radiation therapy which was to be followed by various malignancy tests over a five-year period. Ruskey then rested.\nAfter closing arguments by the attorneys, the trial court stated:\n\u201cI have read my notes, gentlemen, and I have to after reviewing them, find both defendants guilty of robbery, the lesser included offense of robbery.\u201d\nPresentence reports were ordered by the trial court and sentencing was set for May 10, 1984.\nAt the May 10, 1984, sentencing hearing, the assistant State\u2019s Attorney vehemently argued in opposition to the defendant\u2019s probation application. Piehl and Ruskey\u2019s attorney argued just as vociferously for probation.\nThe trial court had before it Ruskey\u2019s presentence report, which revealed that Ruskey was married, had three children, was employed at the time of his arrest and had been employed in a variety of occupations since 1970. The report indicated further that Ruskey had been treated for a drug problem and alcoholism and had been placed on probation for two years in 1972 for possession of marijuana.\nA supplemental presentence report showed that Ruskey had cancer surgery in July 1983 and was undergoing post-operative radiation treatment. A letter was submitted from Dr. John H. Mahler, which stated that the defendant\u2019s prognosis was \u201cguarded\u201d for at least two years. Dr. Mahler recommended a physical examination of Ruskey every three months.\nA letter from Ruskey\u2019s minister was introduced. The letter urged that Ruskey be granted probation inasmuch as Ruskey\u2019s only other criminal offense was committed over 10 years previously. The letter also noted that Ruskey volunteered for treatment for his alcohol and drug problem after he was released on bond and that he had not had any alcohol or drugs since leaving the hospital. The letter further stated that Ruskey\u2019s cancer required constant monitoring.\nRuskey expressed regret to the judge for the offense and stated that he had rejoined his family and was employed. He asked that the court grant probation.\nThe trial judge denied Ruskey\u2019s application for probation and in imposing sentence stated:\n\u201cThe court took into consideration at the time of finding the defendants guilty of robbery, rather than armed robbery, only because in the court\u2019s mind, opinion, the court felt that it had not been proved beyond a reasonable doubt that Miss Cregier actually saw a gun. Based on that I found you guilty of the lesser included offense.\nThe evidence was clear that Mr. Piehl bought the gun, from your own statements ***. Now, the question is as to what that term will be. Mr. Ruskey, I believe that God has taken care of part of the sentence that should be imposed on you. For that reason there is going to be a difference. Mr. Piehl, you went out and bought a gun ***. The court will sentence you for four years in the Illinois Department of Corrections. Mr. Ruskey, the court hereby sentence[s] you to three years in the Illinois Department of Corrections ***.\u201d\nThereafter, Ruskey filed a \u201cMotion for a New Trial Or Reduction of Sentence.\u201d The motion alleged that when the cause came on for trial on April 24, 1984, Ruskey\u2019s attorney indicated to the court that Ruskey desired to be tried by a jury, and that a jury venire was brought to the courtroom, at which time the assistant State\u2019s Attorney inquired of Ruskey\u2019s attorney if he \u201cwould consider having a pretrial conference with the court to ascertain what the court would do if the defendant waived the jury and submitted the case for trial before the court.\u201d The motion alleged further that a conference was held with the court outside the presence of the defendant and without the defendant being advised that such a conference was being held. Ruskey\u2019s motion further alleged that in this conference the trial judge was \u201cinformed that the State had previously offered to reduce the charge from armed robbery in exchange for a plea of guilty to the charge of robbery, and that it [the State] would agree to a sentence of probation with 30 days work release.\u201d The motion additionally recited that the trial court was informed in this conference that Ruskey had refused to plead guilty to the reduced and lesser charge of robbery and probation sentence with 30 days work release, and that because of the State\u2019s Attorney\u2019s office policy, the offer had been irrevocably retracted and cancelled. Ruskey\u2019s motion also asserted that the trial court informed Ruskey\u2019s attorney that if Ruskey waived a trial by jury, the trial court would find the defendant guilty of robbery and \u201cbased on the pretrial conference\u201d would sentence the defendant \u201cin accordance with the State\u2019s prior offer.\u201d\nRuskey\u2019s motion further asserted that subsequent to this conference, Ruskey\u2019s attorney informed him that if he waived a trial by jury the trial court would find him guilty of robbery and place him on probation, with the first 30 days thereof to be served in work release. \u201cAlthough insisting he was innocent of the charge in this case,\u201d Ruskey\u2019s motion contended, Ruskey agreed to waive trial by jury \u201cand accept the probation knowing if the jury found him guilty of armed robbery the court would likely sentence him to in excess of 10 years in the penitentiary.\u201d The motion stated that Ruskey thereafter executed a jury waiver, that the trial of the cause commenced on April 25, and that he \u201cpresented no evidence to rebut the State\u2019s case in light of the pretrial conference with the court, even though the defendant had insisted that he took no part in the robbery, and would have so testified if he believed the case was being contested.\u201d Ruskey\u2019s motion prayed that the court grant a new trial \u201cor reduce his sentence in accordance with the pretrial conference.\u201d\nRuskey\u2019s motion for a new trial or for reduction of sentence came on to be heard on July 2, 1984, at which time Ruskey testified in his own behalf on direct-examination as follows:\n\u201cQ. Now, prior to April 24th, the last time it was set for trial, do you recall at anytime prior to that any offers being made to you to plead guilty to the charge of robbery?\nA. Yes, I do.\n* * *\nQ. And do you recall what the offer that was made some time before April 24th was?\nA. Work Release and probation.\nQ. To the charge of robbery?\nA. Yes.\nQ. And at that point, you turned that down, did you not?\nA. Yes, I did.\nQ. Now, on April 24th when it got to court, the case was set for trial, was it not?\nA. Yes, it was.\nQ. Were jurors called into the courtroom?\nA. Yes, they were.\n* * *\nQ. When the jurors were brought into the courtroom, do you recall at any time my going into Judge Mahon\u2019s chambers while you were sitting there?\nA. Yes, I do.\n* * *\nQ. Some time after that, did I come out of Judge Mahon\u2019s chambers?\nA. Yes, you did.\nQ. And what happened when I came out of his chambers?\nA. Well, you came up to me and you told me, \u2018Let\u2019s go out in the hall, I want to talk to you.\u2019 At that point, you said that the Judge made an offer of probation if I waived the jury, that I would be put on probation \u2014 found guilty of the charge.\n* * *\nQ. And I indicated to you that if you waived the jury, the Judge would find you guilty of robbery and give you the same probation and Work Release that was offered to you previously?\nA. Yes.\nQ. And at that point, what did you tell me?\nA. I told you I wasn\u2019t guilty of the charge and I would like to go with a jury.\n* * *\nQ. What did I say to you at that point?\nA. You said if the jury would find me guilty that I could get as much as ten to twelve years in prison. And I was afraid.\nQ. Did you say anything to me at that point?\nA. Yes. I said that I would waive the jury.\n* * *\nQ. And after that conversation, subsequently, or after that, were you called up before Judge Mahon and did you waive a jury?\nA. Yes, I did.\nQ. And when you waived the jury, what was your understanding of what would happen with the case?\nA. That I would be found guilty of robbery, have Work Release and Probation.\u201d\nRuskey testified on cross-examination:\n\u201cQ. Now, as a matter of fact, before we even went to a trial, and after you had acknowledged that you gave up your right to a jury, you were advised by this court *** that there had been a conference in chambers with your lawyer present and the lawyer for your co-defendant. And you were advised of that, weren\u2019t you?\nA. I don\u2019t remember.\n* * *\nQ. Well, sir, you were in this courtroom on the 24th of April, 1984, that is when you signed a jury waiver, weren\u2019t you?\nA. Yes.\nQ. And at that time do you remember that his Honor, Judge Mahon said to you at that time \u2014 and I will quote on Page 6 from the transcript \u2014 \u2018And I should further state, for the record, that this discussion today, and the discussion of the jury waivers was after we had a conference, but no definite commitments were made by the Court as to what would happen in a bench trial. You both understand that?\u2019 And do you remember saying, \u2018Yes,\u2019 to that question?\nA. No, I don\u2019t.\u201d\nAfter hearing arguments of the attorneys in support of and in opposition to Ruskey\u2019s motion for a new trial or for reduction of sentence, the trial judge stated:\n\u201cI am going to make a statement so that you can respond if you want to. *** Prior to coming out into this courtroom and getting these jury waivers from both defendants, the Court had a conference with the attorneys concerned, and at the time had indicated its willingness to listen, if they were going to agree to \u2014 consider a plea of guilty. We had a jury in this room, because the defendants demanded a jury. The jury was sitting in here. Then we came back and they advised me that they would not plead guilty, and they would prefer to have a bench trial. At that time I explicitly and repeatedly told them there have been no promises, all I can tell you gentlemen, is that I will be fair. And this record *** bears out the fairness that I gave these two defendants. They should well be found guilty of armed robbery. But I elected to say, well, subjectively maybe this girl did not see the gun. That\u2019s the only basis that they were found guilty of robbery rather than armed robbery.\n* * *\nThis Court never did agree to any sentence, to impose any probation on either defendant, and told these attorneys *** at the time that the jurors were sitting out here that all the Court could do was give these men a fair trial with no promises and no commitments ***.\u201d\nThe court denied Ruskey\u2019s motion for a new trial and sentence reduction.\nRuskey argues for reversal that the trial court failed to comply with the sentencing statute and abused its discretion when he denied his probation application.\nRuskey was charged with armed robbery in violation of section 18 \u2014 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 18\u20142). This statute provides: \u201cA person commits armed robbery when he or she [takes property from the person or presence of another, by the use of force, or by threatening the imminent use of force] while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon.\u201d Armed robbery is a Class X felony (Ill. Rev. Stat. 1979, ch. 38, par. 18\u20142(b)) and is a nonprobational offense. It is provided in section 5 \u2014 5\u20143(c)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005\u20145\u2014 3(c)(2)): A period of probation, a term of periodic imprisonment or conditional discharge shall not be imposed for *** [a] Class X felony. Except for the extended term provision for a Class X felony provided in section 5 \u2014 8\u20142(a)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005\u20148\u20142(a)(2)), which is inapplicable here, the penalty for a Class X felony is mandatory imprisonment for not less than 6 years and not more than 30 years. Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(a)(3).\nThere was an abundance of uncontradicted evidence presented at the trial of the cause on which the trial court might have found Ruskey guilty of the armed-robbery offense with which he was charged. The unrefuted testimony of the victim Deborah Cregier, the arresting officers\u2019 testimony of their recovery of the gun, the gun\u2019s holster, Piehl\u2019s receipt for the purchase of the gun, and Ruskey\u2019s undisputed confession provided the trial court with adequate evidence that defendants, Ruskey and Piehl, planned to commit an armed robbery of the 7-Eleven store and that pursuant to their plans they entered the 7-Eleven store and carried out the armed robbery.\nThe trial court could have concluded and there was ample evidence to establish that Ruskey and Piehl entered the 7-Eleven store and that while Ruskey acted as a decoy, Piehl, while armed with a gun in his right hand under his coat with the barrel visible, with force and by threatening the imminent use of force, took money from the person of Deborah Cregier. Although there was no evidence that Ruskey was armed, or that he overtly participated in Piehl\u2019s taking of the money from Cregier, nevertheless Ruskey was guilty of the offense according to the accountability statute (Ill. Rev. Stat. 1979, ch. 38, par. 5\u20142(c)). This statute provides: \u201cA person is legally accountable for the conduct of another when *** [ejither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.\u201d\nThe trial court, however, did not find Ruskey guilty of the nonprobationable, mandatory-imprisonment, armed-robbery offense. Rather, it appears that the trial court extended Ruskey a merciful element of grace and found him guilty of robbery, \u201cthe lesser included offense.\u201d (Ill. Rev. Stat. 1979, ch. 38, par. 18\u20141(a).) This statute provides that a person commits robbery when he takes property from the person or presence of another by the use of force by threatening the imminent use of force. This statute further provides that robbery is a Class 2 felony and under the provisions of sections 5\u20145\u20143(a) and 5\u20145\u20143(b)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, pars. 1005\u20145\u20143(a), (b)(1)), robbery is a probationable offense.\nWhen the trial court denied Ruskey\u2019s application for probation (and immediately before it sentenced Ruskey to three years\u2019 imprisonment), the trial court explained that it found Ruskey (and Piehl) guilty of the lesser included offense of robbery, rather than armed robbery \u201conly because in the court\u2019s mind, opinion, the court felt that it had not been proved beyond a reasonable doubt that Miss Cregier actually saw a gun.\u201d The trial court then stated: \u201cThe evidence was clear that Mr. Piehl bought the gun, from your own statements ***. *** Mr. Piehl, you went out and bought a gun ***.\u201d\nRuskey filed his motion for a new trial or in the alternative for a reduction of sentence. The trial court heard evidence and argument thereon. In denying the motion the trial court again referred to its efforts to be fair in Ruskey\u2019s trial and sentencing. In denying Ruskey\u2019s new trial or sentence reduction motion, the trial court observed: \u201c[T]his record *** bears out the fairness that I gave these two defendants. They should well be found guilty of armed robbery. But I elected to say, well, subjectively maybe this girl [Deborah Cregier] did not see the gun. That\u2019s the only basis that they were found guilty of robbery rather than armed robbery.\u201d\nRuskey contends that the trial court should have further exercised its discretion by granting him probation and he argues that the trial court abused its discretion in not so doing. We do not agree.\nRuskey relies on section 5\u20146\u20141(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005\u20146\u20141(a)), as supportive authority for his argument. This statute provides:\n\u201cExcept where specifically prohibited by other provisions of this Code, the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstances of the offense, and to the history, character and condition of the offender, the court is of the opinion that:\n(1) his imprisonment or periodic imprisonment is necessary for the protection of the public; or\n(2) probation or conditional discharge would depreciate the seriousness of the offender\u2019s conduct and would be inconsistent with the ends of justice.\u201d\nThis statute does not confer an absolute right to probation. The granting or denial of probation rests within the sound discretion of the trial court, and refusal to grant probation will be disturbed by a reviewing court only upon a showing of an abuse of the trial court\u2019s discretion. (People v. Sprouse (1981), 94 Ill. App. 3d 665, 667-68, 418 N.E.2d 1070.) In People v. Hicks (1984), 101 Ill. 2d 366, 375, 462 N.E.2d 473, the supreme court stated:\n\u201cWe have repeatedly emphasized the undesirability of a reviewing court simply substituting its judgment or preference as to punishment for that of the sentencing court. The trial judge is ordinarily best situated to tailor a sentence or other disposition to the needs of the case. He balances the appropriate factors in imposing sentence, and the exercise of this discretion should not be altered upon review absent an abuse of that discretion. [Citations.]\u201d\nBecause the trial court is the better forum for establishing and imposing an appropriate sentence, a court of review gives deference to the trial court\u2019s determination. (People v. La Pointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344.) The trial and sentencing proceedings afford the trial court a superior opportunity to consider the various factors upon which a sentence is predicated than that which is available to a reviewing court by the \u201ccold record.\u201d People v. Perruquet (1977), 68 Ill. 2d 149, 154, 156, 368 N.E.2d 882.\nRuskey argues that the foregoing statute requires that the record must indicate why the trial court was of the opinion that he should not have been granted probation and why granting him probation would deprecate the seriousness of the offense. Ruskey further contends that this statute also demands that the trial court affirmatively reflect in the record why it is of the opinion that imprisonment was necessary for the protection of the public. Ruskey relies on People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541. In Cox, the supreme court stated:\n\u201cWhenever a sentence of imprisonment or periodic imprisonment is imposed, the record must indicate that the judge is of the opinion that imprisonment is necessary for the protection of the public or that probation or conditional discharge would deprecate the seriousness of the offender\u2019s conduct and would be inconsistent with the ends of justice. Substantial compliance with section 5 \u2014 6\u20141 may exist even if the judge does not specifically say that \u2018imprisonment is necessary for the protection of the public\u2019 or that \u2018probation or conditional discharge would deprecate the seriousness of the offender\u2019s conduct and would be inconsistent with the ends of justice. \u2019 If the record demonstrates substantial compliance with this requirement, then a reviewing court may alter the sentencing judge\u2019s disposition only upon a finding of an abuse of discretion.\u2019\" (Emphasis added.) 82 Ill. 2d 268, 281, 412 N.E.2d 541.\nThe statute does not require the trial court to set forth specific findings, or to verbalize the reasons, or to expressly state the basis upon which it relies for refusing to grant probation. (People v. Roberts (1983), 115 Ill. App. 3d 384, 388-89, 450 N.E.2d 451.) Although it would be preferable for the court to do so, failure to do so does not automatically void the sentence. People v. Kuesis (1980), 83 Ill. 2d 402, 409-10, 425 N.E.2d 323.\nThe record before us, however, clearly reflects why the trial court was of the opinion that imprisonment was necessary for the protection of the public and why probation would deprecate the seriousness of Ruskey\u2019s conduct and would be inconsistent with the ends of justice. Even though the trial court neglected to use the statutory \u201cmagic words,\u201d it, nevertheless, essentially complied with the statute\u2019s requirements.\nThe record reveals that the trial court meticulously considered Ruskey\u2019s application for probation. The trial court had before it and considered Ruskey\u2019s presentence and his supplementary presentence reports. In denying probation and in sentencing Ruskey to three years\u2019 imprisonment, the trial court was authorized to rely on the facts that the robbery was at night and of a young lady in a neighborhood establishment. The trial court pointed out that the robbery was planned and that the victims were chosen because they were \u201cdumb.\u201d Ruskey was a subterfuge in the robbery and endeavored to decoy the officers from the true culprit. The trial court stated that it would be remiss in its duty if it did not impose an imprisonment sentence. The trial court considered Ruskey\u2019s health in determining the length of the sentence and stated, \u201cGod has taken care of part of the sentence that should be imposed on you.\u201d The question is not whether from our review of the trial record we would have imposed a different sentence. Rather, the questions to be resolved from our review of the record are whether the trial court complied with the sentencing statute and whether the trial court abused its discretion in denying Ruskey\u2019s application for probation. We conclude from our review of the record that the trial court complied with the sentencing statute and that the trial court did not abuse its discretion when it did not grant Ruskey probation and sentenced him to three years\u2019 imprisonment.\nThe defendant\u2019s reliance on People v. Turner (1982), 110 Ill. App. 3d 519, 442 N.E. 2d 637, is misplaced. In Turner, the reviewing court vacated the defendant\u2019s five-year imprisonment sentence for forgery because of noncompliance \"with the sentencing statute, in that the record was totally \u201csilent\u201d as to the judge\u2019s reasons for not granting probation and imposing the imprisonment sentence. The trial court\u2019s reasons are not absent but are clearly stated in the record before us.\nRuskey argues that the trial court abused its discretion in considering as aggravation in imposing sentence that a gun was used in the robbery because the evidence failed to establish beyond a reasonable doubt that Deborah Cregier saw the gun during the commission of the robbery. As previously pointed out, the trial court clarified its finding of guilt. In denying the motion for a new trial and for sentence reduction, the trial judge stated: \u201cThey should well be found guilty of armed robbery. But I elected to say well, subjectively maybe the girl did not see the gun. That\u2019s the only basis that they were found guilty of robbery than armed robbery.\u201d\nAlthough the trial court stated it did not believe beyond a reasonable doubt that the victim actually saw the gun during the robbery, the trial court was not thereby precluded from relying on other evidence of the use of the gun in the commission of the robbery in determining the sentence to impose. Significantly, the trial court did not find that a gun was not used in the robbery. The trial court merely concluded that the evidence did not establish beyond a reasonable doubt that the victim saw the gun.\nRegardless of whether the victim saw the gun, there was other evidence that a gun was used in the commission of the robbery. Piehl purchased the gun, the receipt for which was recovered by the officers. Piehl and Ruskey confessed to using the gun during the robbery. The gun was found in the gangway next to Ruskey\u2019s house, close to where Piehl was arrested, and the holster for the gun was recovered from the front seat of Ruskey\u2019s car.\nThe following authorities upon which Ruskey relies to support his contention that the trial court improperly considered that a gun was used in the robbery in imposing sentence are inapplicable to his case. In People v. Cross (1984), 100 Ill. App. 3d 83, 426 N.E.2d 623, the trial court in sentencing relied on a statement that the battery victim had died, although the jury had found the defendant guilty of only a battery, rather than murder. In People v. Maldonado (1980), 80 Ill. App. 3d 1046, 400 N.E.2d 656, the trial court in imposing sentence was improperly influenced by hearsay evidence of the defendant\u2019s commission of other prior offenses. In People v. Gant (1974), 18 Ill. App. 3d 61, 309 N.E.2d 265, the trial court in imposing sentence relied on the robbery victim\u2019s death, which was not by allegation or proof attributable to the defendant. None of these authorities cited by the defendant prohibited the trial court in the case before us from relying on the trial evidence of the use of the gun in the commission of the robbery in determining the sentence to be imposed.\nThe judgment is affirmed.\nAffirmed.\nSULLIVAN, P.J., and LORENZ, J., concur.\nThe trial judge stated, following argument on Huskey\u2019s motion for a new trial or for reduction of sentence, that he did not tell Huskey\u2019s attorney that he would place Ruskey on probation. Huskey\u2019s attorney did not dispute or in any way contradict this statement.", "type": "majority", "author": "JUSTICE PINCHAM" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Marilyn Martin, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Joan S. Cherry, Inge Fryklund, and Graham C. Grady, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH RUSKEY, Defendant-Appellant.\nFirst District (5th Division)\nNo. 84\u20141678\nOpinion filed July 18, 1986.\nJames J. Doherty, Public Defender, of Chicago (Marilyn Martin, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Joan S. Cherry, Inge Fryklund, and Graham C. Grady, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0482-01", "first_page_order": 504, "last_page_order": 519 }